The Corner

Law & the Courts

My Error Regarding the Foreign Bank Account Charge in Sweetheart Plea Mueller Gave Gates

As detailed in my column over the weekend about Special Counsel Robert Mueller’s flouting of Justice Department standards, there are significant differences between the two-count criminal information to which Mueller permitted Richard Gates to plead guilty and both (a) the original 12-count District of Columbia indictment Mueller brought against Gates and co-conspirator Paul Manafort, and (b) the subsequent 25-count Eastern District of Virginia indictment Mueller added the day before Gates pled guilty. The criminal information to which Gates pled guilty draws from the District of Columbia indictment.

In making sketchy notes about the offenses Mueller included, the offenses he omitted, and the various federal statutes applicable to each, I made an error regarding the so-called FBAR charges — involving the failure to file reports of foreign bank accounts, which is made a crime by Section 5314 of Title 31, U.S. Code. When the error is explained, you will see that, if anything, I understated the degree to which Mueller shielded Gates from accountability for his crimes.

In the column, I pointed out that Mueller allowed Gates to plead guilty to the comparatively minor Section 371 conspiracy provision in the federal penal code, which prescribes a maximum sentence of five years’ imprisonment. Federal prosecutors are not supposed to charge this “catch-all” conspiracy statute when Congress has tailored a more serious conspiracy statute that is applicable to the defendant’s misconduct — e.g., when, as in Gates’s case, a defendant is alleged to have committed money-laundering conspiracy, prosecutors are supposed to charge Congress’s 20-year money-laundering conspiracy statute, not the five-year Section 371 offense.

The error I made was in asserting that Congress has prescribed a separate conspiracy provision for FBAR offenses. It has not. The penalty provision for FBAR offenses is set forth in Section 5322(b) of Title 31 (which I linked to in the column). The notable thing about this statute is not that it contains a conspiracy provision (it does not); it is that the statute prescribes a ten-year maximum penalty for an FBAR offense. Consequently, I was correct in my main point, which is that Mueller manipulated the law in order to halve Gates’s exposure to jail time. I was wrong about how he did it. It is not that Mueller charged a five-year Section 371 conspiracy in lieu of a ten-year FBAR conspiracy (since there is no separate FBAR conspiracy). It is that he charged a five-year Section 371 conspiracy in lieu of the ten-year FBAR statute that Gates was originally charged with violating.

In context, Mueller’s gift to Gates is more outrageous than that. As I related in the column, Gates was charged with not one but three FBAR offenses, Counts Seven through Nine of the original indictment. Therefore, although he was facing a possible 30 years of prison exposure on these charges, Mueller let him plead guilty to an offense that caps his exposure at five years. Even worse, as the column details, Mueller went out of his way to drop Gates’s own FBAR offenses from the conspiracy charge to which Gates pled guilty. Instead, Gates pled guilty to a conspiracy that alleged FBAR counts in which only Manafort, not Gates, was charged — Counts Six through Nine. So not only is Gates’s potential sentence substantially slashed; he is now depicted as a mere accomplice in Manafort’s crimes, rather than as having committed his own separate FBAR crimes.

I regret the error. To be clear, Congress has not prescribed a separate conspiracy provision for FBAR offenses. That does not change the fact that Mueller gave Gates a sweetheart plea deal — of which, as the column details, the FBAR manipulation is just a small part of the special counsel’s wheeling and dealing. The column has been corrected, and this post will be linked to the correction.

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